The Death Penalty and Evolving Norms of Customary International Law

by Kristen Boon

In his August 9, 2012 report, the Special Rapporteur on Torture, Juan Mendez, makes the claim that there is an emerging norm that the death penalty constitutes cruel and unusual punishment. Mendez acknowledges that international law does not prohibit the death penalty, but notes it does encourage its elimination. Specifically, his report states: “there is an evolving standard whereby states and judiciaries consider the death penalty to be a violation per se of the prohibition of torture or cruel and degrading treatment.”

Nonetheless, Mendez argued that those countries that did not participate in the emergence of the norms were free to reject them. In other words, persistent objectors to a customary international law norm are not bound by it.

In parallel, the ILC is reconsidering the formation and evidence of Customary International Law. The Death Penalty might be a relevant test case. What do Opinio Juris readers think?

11 Responses

I’ve always been surprised at the idea that CIL rules somehow need to be global. Conceptually, I don’t see why this should be the case. Especially in a case like the death penalty, where the sides are very clearly identifiable, it does not seem unreasonable to describe the position of the “No” side as constituting a CIL ban on the death penalty, albeit one that is adhered to only by a subset of the states of the world.

Most of the material referred to in support seems to approach it under the rubric of ‘cruel, inhuman or degrading punishment’. I find it hard to see how it could constitute torture as defined in Art 1(1) of the UN Convention against Torture, because that concept has an ulterior intent element.

10.24.2012
at 9:53 pm EST Rob Clarke

Remeber the good old days when international law was about State to State relations or how one State treated the nationals of another State.

10.25.2012
at 2:35 am EST Ian Henderson

Sure. Imagine if we could all stop fussing over niceties and resolve problems by practical means like population exchanges, reprisals, nakedly protectionist trade policies, and interlocking military pacts that virtually guaranteed that minor international incidents would escalate into … oh, wait a minute …

Mr. Holterman is correct. As the ICJ stated, a customary international law norm can exist between as few as two states. Case Concerning Rights of Passage Over Indian Territory (Merits), 1960 ICJ 39-44 (Apr. 13).

10.25.2012
at 8:48 am EST Francisco F. Martin

Re: I find it hard to see how it could constitute torture as defined in Art 1(1) of the UN Convention against Torture, because that concept has an ulterior intent element.

The article only requires severe pain or suffering, whether physical or mental, intentionally inflicted on a person for such purposes as punishing him for an act he or a third person has committed or is suspected of having committed.

The exceptions envisioned in the disclaimer that “It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” was never intended to grant a license to Justices Scalia and Thomas to intentionally execute a person who is “actually” innocent, i.e.:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

10.25.2012
at 10:42 am EST Hostage

@ Ian H. – sorry for being facetious. But isn’t it still the consensus understanding that human rights are a matter of state relations, e.g. a subset thereof involving mutual obligations undertaken by states to treat those on their territory (citizens or non-citizens) according to a set of agreed minimum standards?

@ Everybody else – does the intriguing thing about this debate relate to the fact that human rights can impose a kind of hypocrisy on states, in the sense that they rarely have an explicit policy of violating human rights or objecting to their validity but frequently violate them as a matter of policy nonetheless?

Here, the progressive development of human rights law appears to afford scope to the states in question to try to define their behaviour out of the area of prohibited conduct altogether – e.g. denying the existence of a new rule entirely, rather than objecting to its applicability to them in particular. Meanwhile, human rights advocates proceed from the existence of the rule, thereby placing more of a burden on states to justify their deviation from it.

Maybe this is the way CIL battles are fought these days, but that does seem a bit different from old style cases like the Norwegian fisheries where the Norwegians didn’t mind what rules others used to define their territorial waters but didn’t want to be held to those rules themselves.

No trouble. Interestingly, I thought many of your examples were good topics to be addressed by international law.

I have no problems with human rights law per se, and can even agree with human rights treaties that States freely choose to enter into for whatever reasons those States may have to do so (subject to living in a federal system and noting how that can affect the distribution of legislative power betwen federal and state governments). I just start to pause when we extend customary international law into a State where, in reality, what we are talking about is a matter of domestic politics with very little connection to international relations.

I am not convinced it is an issue for Australia whether or not the US (or Singapore or Egypt) has the death penalty (except vis-a-vis extradition etc) while at the same time I hope the US does not take an interest in how Australia chooses to regulate the ownership and carriage of weapons by Australians (perhaps arguing that there is an evolving standard that there is a right to bear arms to protect one’s other human rights against flagrant violation by State officials?).

10.25.2012
at 5:02 pm EST Ian Henderson

Thanks Ian. I can see the point that CIL as an instrument of extending established treaty obligations does raise issues in terms of the consent to be bound by the states involved. But if ALL the states-parties agreed to be bound by the progressive interpretation of a particular rule, there wouldn’t be a problem there either presumably.

The problem is the bind that persistent objection puts objectors in given the moral, as well as legal weight attributed to human rights rules. Objection becomes not just an ordinary, discretionary policy (or democratic) decision in such instances but instead a decision to continue with practices that the majority of other state parties actually believe constitutes a violation not only of the formal mutual obligations all have signed onto but also of a moral code that has increasingly shaped international relations in our time.
However, even from a purely formal perspective, Australia may have legitimate concerns about the US death penalty if it believes that multilateral treaties that both countries have bound themselves to must now be understood to rule out the legal application of the death penalty. If all the other states-parties but the US agreed with this interpretation, then it would be increasingly hard to avoid the conclusion that the US was in apparent breach of its obligations with respect to the other states-parties, no?

And the bind that I tried to describe above is that if the US responds by saying it is not bound, as a persistent objector, to the rule, it is also acknowledging the validity of the rule for non-objectors as CIL. Which leaves the option of trying to argue – perhaps against a large majority of other states – that no such CIL rule is emerging. For what its worth, by the way, this isn’t the first time this has happened. Witness the emergence of the human right to adequate water for instance, arguably an emerging CIL extension of states’ obligations on the ICESCR.

Re: The article only requires severe pain or suffering, whether physical or mental, intentionally inflicted on a person for such purposes as punishing him for an act he or a third person has committed or is suspected of having committed….
I agree that if the death penalty is imposed with the intent that the prospect of execution will in itself act as a form of punishment, that could constitute torture.
For a blast from the past, we may look to the post-WWII Nuremberg Ministries Trial (with respect to a proposal that certain persons sentenced to death not be informed that Hitler had granted them a reprieve):To permit one sentenced to death to remain for months or even years without knowledge of his reprieve under the intolerable anxiety and mental stress of not knowing whether the next day would be his last day on earth is a trait typical of the sadism of the Nazi regime, and if anything could be considered a crime against humanity, such a practice is.

10.28.2012
at 9:59 am EST Rob Clarke

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